The Conference of the Notariats of the European Union (CNUE) has responded to the European Commission’s monitoring report on competition in the professional services sector, published on 5 September 2005. “The accomplishment of public tasks must be considered separately in the context of European Competition Law. Civil law notaries carry out their activities in this field, activities which cannot be subject only to free competition regulations”, affirmed CNUE President, Paolo Piccoli.
“Special attention should be paid to activities concerning public authority. To this end, civil law notaries have a public officer status which is significantly different from that of the other liberal professions. This status must also be reflected by the professional regulations”. The CNUE is very pleased that the Commission has recognised this in stating that “the so-called ‘Latin’ notary profession (sometimes referred to as ‘civil law notaries’) are independent professionals who advise private parties and draft contracts on their instruction, as well as partake in the issuing of public documents, and fulfil quasi-judicial duties. They are appointed by the state, entrusted with public functions and hold a public office. They are not however civil servants and remain independent from the state and economically self-reliant”. This profession exists in Austria, Belgium, Czech Republic, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia and Spain, in addition to over 50 other countries worldwide, including China.
Furthermore, the Commission recognised that competition law could not be applicable when carrying out public duties. It explained that “although the exercise of public authority is not an economic activity, the concept of undertaking is relative. A given entity may be engaged partially in an economic activity and partially exercise public authority.” However, the European Commission has not revealed what this means.
“To ensure that everyone benefits from a high quality notarial service, a regulatory framework is necessary” stated President Piccoli, who also added “that the notariat is paving the way for modernisation across Europe. Let us take for example of the use of new technologies on a large scale: the notariat, an active promoter of the electronisation of state registers (as for real estate, company registers, etc.) is also embarking upon the elaboration of electronic notarial deeds. In this way, it is contributing to e-government and the simplification of administrative procedures”.
“The notariat had already begun this evolution long before DG Competition launched its initiatives. The notariat offers private parties and enterprises the “legal security product” in 19 Member States and, in public opinion, this product is assuming increasing importance. The innovation of this public asset is the notariat’s contribution to the Lisbon Strategy and to Europe as a place where enterprises are setting up. Economic players need a truly safe space”.
Moreover, the CNUE calls for greater coherence between the EU’s political domains. Competition policy must – more so than in the past – take into account the justice policy of The Hague Programme for freedom, security and justice in addition to the quality demands set down in the Programme. Finally, it is the proper functioning of the legal system – to which the civil law notary undoubtedly contributes – that constitutes the basic condition to guarantee the appeal of a location for setting up enterprises and attracting a high level of investments.